England’s Difficulty and Ireland’s opportunity?

The Law Reform Commission held its annual conference on 14th November. The theme this year was Brexit and Law Reform in Ireland. While the negotiations continue to eke out minute details of a post-Brexit world, the Law Reform Commission decided to speculate what the impact may be on Ireland’s legal system.

Opinions were manifold. Former Justice of the Supreme Court and current President of the Law Reform Commission, Mary Laffoy, asserted that despite the probable political divergences of Brexit, Ireland will still feel a ‘gravitational pull’ towards the UK. Ms Laffoy stated that it was important to remember that “regardless of the United Kingdom’s relationship with the EU, much of our law reform work takes place outside of any EU context,”. She expounded that the system of the EU allowed each state to determine its own laws. But she qualified this by saying that there is an inevitable magnetic pull of history examining what the position in the UK might be…… for perfectly valid, albeit pragmatic, reasons, it will often make sense to conclude that, all other things being equal, an English solution to a legal problem could also be a suitable solution to an Irish legal problem,”. This is an astute observation. Ireland’s legal system derives a lot from the UK and as we are both common law jurisdictions (a minority in the EU) it makes sense to borrow ideas from the UK. Thus one possible implication is that Brexit will require Ireland to balance between the old UK system and the new EU laws.

Gerard Hogan, the keynote speaker, was more pessimistic, stating that Ireland has ‘to face facts’. Brexit meant that Ireland has lost its key ally and thus Ireland was in ‘de facto isolation’ as the largest common law jurisdiction. This could lead to the other Member States swamping Ireland with potentially hazardous legislation, citing the common European sales law as one example. On the other hand, Patrick Leonard SC took a more opportunistic view. He reasoned that Brexit was a chance for Ireland to facilitate a business environment more compatible with international business. He emphasised that Ireland already had the necessary mise en scene for supporting companies, namely an independent judiciary. Ireland, he said, could become a hub for international dispute resolution.

Ken Murphy, President of the Law Society, focused on the effect that Brexit would have on employment in the legal sector. He urged the Commission to capitalise on the difficulties of Brexit. “Any crumbs from the London table would be very significant for the Irish legal system given the disparity in size between the two jurisdictions,”. He also said that now 11 per cent of solicitors in the Republic were from England and Wales, due to a mass defection after Brexit.

All this talk points to one inescapable fact: Brexit, at the moment, means an opportunity and a problem for the Irish legal system. Which side the verdict falls on remains to be seen.